Torrens Transit Services Pty Ltd T/A Torrens Transit

[2023] FWCA 1487

[2023] FWCA 1487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Torrens Transit Services Pty Ltd T/A Torrens Transit

(AG2023/1291)

TORRENS TRANSIT AND AUSTRALIAN MANUFACTURING WORKERS UNION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 26 MAY 2023

Application for approval of the Torrens Transit and Australian Manufacturing Workers Union Enterprise Agreement 2023 (Workshops)

1. An application has been made for approval of an enterprise agreement known as the Torrens Transit and Australian Manufacturing Workers Union Enterprise Agreement (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Torrens Transit Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. I note that one of the Employee Bargaining Representatives (EBR) raised concerns that the employees they represented do not support the approval of the Agreement. Whilst I note this EBR represented employees who did not support the Agreement’s approval, I am satisfied that the Agreement was made in accordance with s182 of the Act.

1. I further note that an EBR has raised concerns about overtime in respect of the Better of overall test (BOOT). I have considered those views and am satisfied that the Agreement contains sufficient additional compensation to offset the issues raised.

1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. Despite clause 7.1 of the Agreement, I note that the Agreement will take operate from 7 days after the approval of the Agreement in accordance with s 54 of the Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·     Clause 8.1 – Maximum weekly hours of work.

·     Clause 15.7 (b) – Redundancy.

However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 February 2027.

DEPUTY PRESIDENT

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